I have written a book on the politics of autism policy. Building on this research, this blog offers insights, analysis, and facts about recent events. If you have advice, tips, or comments, please get in touch with me at jpitney@cmc.edu

The case concerns the parents of an autistic student in Colorado, who sued the local school district for private school tuition because he didn’t receive a “meaningful” education in public school. The school district prevailed in the US Court of Appeals for the 10th Circuit, which held that the district is only required to provide educational benefits that are more than minimal or trivial. Six other circuit courts have applied similar standards, but the Third and Sixth Circuits have split, ruling that schools must supply a “meaningful educational benefit.”

The confusion runs several layers deep. First, it is unclear whether school districts have to provide “meaningful” or just “more than trivial” educational benefits to students. Second, what can qualify as “meaningful” or “more than trivial” can vary from student to student.

And the Supreme Court is responsible for the confusion, some argue, because of a decision it delivered in 1982. That decision, Board of Education v. Rowley, says not only that schools must provide “some educational benefit” to disabled students, but also that this benefit must provide the student “access” to education that is “meaningful.”

“Just clarifying that ambiguity ... would help clarify what the rules of the game are,” says Ron Hager, the senior staff attorney at the National Disability Rights Network, a group that has submitted an amicus brief in support of Endrew. "This is the biggest [special ed] Supreme Court case since Rowley."

At today’s oral argument in the case of a Colorado student with autism, one thing seemed relatively clear: The justices were dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy federal education law as long as they offer a student with a disability an educational program that provides him or her with a benefit that is more than merely de minimis, or non-trivial. It was less clear exactly what standard (if any) the justices might substitute for the “more than merely de minimis” standard, but a standard “with bite” – as Justices Ruth Bader Ginsburg and Elena Kagan put it – would be a welcome development for children with disabilities and their parents.

During Wednesday’s argument, the justices struggled with the lawyers and among themselves to find the right legal standard. At one point, Justice Samuel A. Alito Jr. drew knowing smiles from his colleagues when he complained of the “blizzard of words” being tossed around, most of which had no clear meaning.

However, most of the justices appeared to favor setting a slightly higher standard, one that should lead the child to make measured progress on academics or behavior. Chief Justice John G. Roberts Jr. said it would not be sufficient for schools to provide an expert for five minutes a day and claim they were providing the child “some benefit.”

But the chief justice and others said they were wary of setting an unrealistically strict standard that would require students to meet certain goals. They also voiced worries about costs and an explosion of lawsuits.

Indeed, questions from the justices pointed to a basic problem: translating the words of a judicial decision into ground-level policy. Whatever language the justices use, IEP teams will still have to decide which students get which kinds of accommodations and how many hours of which services.

Breyer: "But if you, say, measure that in terms of their ability to progress from grade to grade, maybe some will; some won't. And how does that -- it seems to me the word "appropriate" tried to recognize that. And -- and do you want to recognize that? I mean, you can't ask for more than is reasonable for them to do. So -- so what -- what words do we use?"

Sotomayor: "I do think the Act provides enough to set a clear standard. But the words are what we're trying to -- to come to that would be less confusing to everyone."

Kagan: " Well, again, if somebody said to you, write a stature with -- write a standard with bite, I doubt you would come up with the words `more than merely de minimis.'"

Alito: "We're going to have to use musical notation to -- and not just words -- to express the -- the idea that seems to be emerging. All right."

Kennedy; " I suppose -- I suppose it's implicit in your standards and in some of the provisions you read that what we're talking about is the word `reasonable' that we see throughout the law. Do -- do you see any -- any function for that word and, in addition, as part of what reasonable is, is there any place to discuss the cost that the -- would -- would be incurred for, say, severely disabled students?"